Touchet v. Touchet

Full title: DANIEL PAUL TOUCHET, PLAINTIFF-APPELLEE, v. GERALDINE DUTILE TOUCHET…

Court: Court of Appeal of Louisiana, Third Circuit

Date published: Aug 1, 1977

350 So. 2d 917 (La. Ct. App. 1977)

Opinion

No. 6213.

August 1, 1977.

APPEAL FROM SIXTEENTH JUDICIAL DISTRICT COURT, PARISH OF IBERIA, STATE OF LOUISIANA, HONORABLE C. THOMAS BIENVENU, JR., J.

Guilbeau, Sullivan Joy by Thomas E. Guilbeau, Lafayette, for defendant-appellant.

Armentor Wattigny by Gerard B. Wattigny, New Iberia, for plaintiff-appellee.

Before CULPEPPER, GUIDRY and FORET, JJ.

FORET, Judge.

These consolidated suits are actions seeking separation, divorce, alimony and custody. When the record was lodged with this court, we noted ex proprio motu, that the defendant's, Geraldine Dutile Touchet, appeal was apparently not timely perfected, and issued a rule, ordering the defendant to show cause, by brief, why her appeal should not be dismissed for failure to timely perfect her appeal. The defendant has timely answered the rule.

A consolidated judgment was signed and rendered in these matters on January 17, 1977, awarding the plaintiff-appellee, Daniel Paul Touchet, a judgment of divorce, and awarding him custody of the couple's minor child. On January 25, the defendant timely filed a motion for a new trial, which was denied, and a judgment denying the motion was read and signed on March 25, 1977.

On April 25, 1977, the defendant moved for and was granted a devolutive appeal to this court, which appeal was made returnable on June 24, 1977. Bond was set at $250.00. The defendant filed her appeal bond on May 6, 1977.

LSA C.C.P. art. 3942 and art. 3943 provides that judgments granting or refusing divorce, custody and alimony can only be taken within 30 days from the applicable date provided in art. 2087(1) (3). In her answer to the rule the defendant admits that her appeal was not timely perfected as to the judgment of January 17, 1977, which awarded the plaintiff a divorce and custody of the minor child, but that her appeal was not taken from that judgment, but from the judgment of March 25, 1977 which denied her a new trial. While we appreciate the novelty of the defendant's argument, even if we were to hold to that such were the case, it would be to no avail, as this court has only recently held that a judgment denying a new trial is a non-appealable interlocutory judgment. Shavers v. Succession of Shavers, 350 So.2d 915 (La.App. 3rd Cir. 1977).

For the reasons assigned, the appeal of the defendant-appellant, Geraldine Dutile Touchet, is hereby dismissed. The defendant is cast with the costs of this appeal.

APPEAL DISMISSED.